Paragraph 7 of the Multi-Party Interim Appeal Arbitration Arrangement Pursuant to Article 25 of the DSU says:
The participating Members envisage that appeal arbitrators will be provided with appropriate administrative and legal support, which will offer the necessary guarantees of quality and independence, given the nature of the responsibilities involved. The participating Members envisage that the support structure will be entirely separate from the WTO Secretariat staff and its divisions supporting the panels and be answerable, regarding the substance of their work, only to appeal arbitrators. The participating Members request the WTO Director General to ensure the availability of a support structure meeting these criteria.
I'm not sure what that means exactly. The WTO DG is supposed to "ensure" that a "support structure" is available, but there are a range of possibilities within that general guidance. When the text says, "the support structure will be entirely separate from the WTO Secretariat staff and its divisions supporting the panels," does that mean separate only from the particular Secretariat staff that supports the panels, so that other Secretariat staff can help out with the MPIA? Or does it mean separate from the Secretariat staff and also separate from its divisions supporting the panels? I feel like it can't be the latter, because the Secretariat staff includes the divisions supporting the panels, so it would be redundant to say it that way.
Regardless, or perhaps as a result, the U.S. seems to have concerns. In a letter to the DG (posted on Inside US Trade here and by Bryce Baschuk here), the U.S. has now made clear what it does not want:
... the proposal would expend WTO resources to seek to recreate the Appellate Body, its erroneous practices, and the Appellate Body Secretariat through a plurilateral arrangement. Article 25 provides no basis for the use of WTO resources to support functions that are not part of the arbitration, such as for a "pool of arbitrators" to "stay abreast of WTO dispute settlement activities" or to enable the arbitrators to "discuss among themselves matters of interpretation, practice[,] and procedure." ...
Nor does Article 25 provide a basis for a Member to direct the WTO Director-General to provide WTO Secretariat support to an arbitrator, nor the terms of such support. ... The arrangement "envisages that the support structure will be entirely separate from the WTO Secretariat staff' and the WTO divisions that support panels. If Members desire a separate support staff for their dispute resolutions, those Members (and not the WTO membership as a whole) should finance it. Members should not be allowed to create their own support structure within the WTO that is separate from the WTO Secretariat and expect other Members to pay.
Accordingly, the United States opposes both the establishment of what appears to be a new WTO Division for the benefit of participants in the ... arrangement and the allocation of staff for the exclusive use of those participants. ....
Given the power of individual Members over the WTO budget, this means a special new WTO division for the MPIA is certainly out of the question.
What about just sending over WTO Secretariat staff (from divisions other than those who support panels) to work on MPIA cases as needed? Would the U.S. agree to that?
How about hiring people on an ad hoc basis when disputes arise? It would be a short-term contract that was solely for the duration of a specific case.
If the U.S. objects to WTO Secretariat participation and funding in any of these ways, the MPIA parties may have to hire people out of their own funds. I don't know that it would be all that expensive. If you have arbitrators who have experience (and the two names we have heard so far do), they may not need that much support. And given the low number of disputes between the 21 current parties, there may not be too many cases to support.
